Under the Americans With Disabilities Act ("ADA"), before an applicant receives a conditional offer of employment (during the "pre-offer period"), covered employers are prohibited from asking any question that is likely to reveal the existence of a disability.  This prohibition applies equally to written questions asked on an application and those asked verbally during an interview.  Examples of prohibited pre-offer inquiries include:

Timing is everything.  Pre-offer, the employer should only ask if the applicant is able to perform the essential functions of the job as described by the employer.  An employer has more latitude to ask job-related questions that might elicit health information or to require a medical examination after it has extended the applicant a conditional job offer, as long as the employer treats all applicants who are offered the same type of job equally.

• Do you have a disability that will interfere with your ability to perform the job?
• Do you need a reasonable accommodation to perform the job?
• How many sick days or FMLA days did you take during the last year?
• Have you ever filed a claim for workers' compensation benefits?
• Have you ever been treated for mental health issues?
• What prescription drugs are you currently taking?

However, if an applicant volunteers information regarding a disability, the employer may listen.  Moreover, if an applicant has an obvious disability and it is reasonable to ask whether this disability will make it difficult for the applicant to perform a specific job task, the employer may ask if an accommodation is needed to perform the specific task.

• Example:  Mary uses a wheelchair.  She applies for a job that requires her to retrieve and store files on shelves that would appear to be beyond her reach.  The employer may ask Mary whether she would need a reasonable accommodation to perform the job.  Mary replies that she can stand for short periods of time and believes she can perform the job.  The employer may show Mary the files and ask her to describe how she would perform the task with or without reasonable accommodation.

An employer can always list the functions of the job and ask the employee if he or she is qualified to perform them.  Just be careful if the conversation turns to health-related issues.  The time to follow up on those types of issues is after the conditional offer of employment, not before.